Jonaitis & Arendsen
[2024] FedCFamC1F 593
•19 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jonaitis & Arendsen [2024] FedCFamC1F 593
File number(s): NCC 4107 of 2021 Judgment of: SMITH J Date of judgment: 19 August 2024 Catchwords: FAMILY LAW – PARENTING – Final Hearing – Ex Tempore Reasons for Judgment on approval to record no positive findings children safe on consent orders approved - Where the father legally represented at final hearing – Where father withdrew his Response to Initiating Application and elected not to participate – Where matter progressed by way of Undefended Hearing regarding the father – Where the mother and paternal aunt reached consent orders supported by Independent Children’s Lawyer – Department of Communities and Justice (NSW) (“DCJ”) continued involvement in mother’s household - No positive finding children safe, or unsafe, in mother’s household – No other alternative orders available to Court - Orders made for children to live with mother – Orders made for children to spend time with aunt – Injunctions restraining father – DCJ to be provided with copy of orders and Reasons for Judgment. Legislation: Family Law Act 1975 (Cth) Pt VII, s 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.2, r 10.04
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 19 August 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Ms Hamilton Solicitor for the Applicant: Koulouris & Associates Pty Ltd Counsel for the First Respondent: Mr Sundstrom Solicitor for the First Respondent: Toronto Legal Counsel for the Second Respondent: Mr Mooney Solicitor for the Second Respondent: Winder Lawyers Counsel for the Independent Children's Lawyer: Ms Court Solicitor for the Independent Children's Lawyer: Foat Roberts Lawyers ORDERS
NCC 4107 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JONAITIS
Applicant
AND: MR ARENDSEN
First Respondent
MS ARENDSEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 AUGUST 2024
THE COURT ORDERS THAT:
1.The matter proceed by way of an Undefended Hearing with respect to the First Respondent.
2.All prior orders be discharged.
3.A copy of these Orders and the short reasons for Judgment are to be provided to the NSW Department of Communities and Justice by a Registrar of the Court, for their information.
4.There be no Order as to costs.
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
5.The Response to Initiating Application filed 15 March 2022 be dismissed.
6.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Final Orders be made in accordance with the document attached hereto.
7.The matter be removed from the list of matters awaiting finalisation and all future listing dates be vacated.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND File: (P)NCC4107/2021 FAMILY COURT OF AUSTRALIA
(DIVISION 1)BETWEEN: MS JONAITIS
(Applicant Mother)
AND: MR ARENDSEN
(First Respondent Father)
AND: MS ARENDSEN
(Second Respondent Paternal Aunt)
AND: INDEPENDENT CHILDRENS LAWYER
MINUTE OF ORDERS SOUGHT BY
APPLICANT AND SECOND RESPONDENT
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The children X born 2010 (‘X’) and Y born 2014 (‘Y’) (together ‘the children’) will live with the mother.
3.The mother has sole decision-making authority for Y.
4.The mother and the Second Respondent Paternal Aunt have joint decision-making authority for X in respect of medical decisions only, and otherwise the mother has sole decision-making authority for X.
5.That the children spend time with Paternal Aunt as follows:
(a)During school terms each alternate weekend from 5pm Friday till 5pm Sunday
(b)During terms 1, 2 and 3 school holidays, for up to 7 consecutive nights as agreed between the mother and paternal aunt or failing agreement commencing at 10am on the first Saturday till 10am the following Saturday.
(c)At Christmas from 5pm Christmas Eve till 2pm Christmas Day in all odd numbered years and from 10am till 4pm on Christmas Day in all even numbered years.
(d)During the December/January school holidays for a period of 7 consecutive days as agreed between the mother and paternal aunt in writing and failing agreement from 10am on 3 January till 10am on 10 January.
6.The Paternal Aunt is authorised (and a copy of these orders shall be sufficient authority):
(a)To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the children may attend from time to time;
(b)To attend all functions to which parents are normally invited by any school which the children may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, and sports days;
(c)To receive such medical reports, test results, medical notes and other similar documents in relation to X only that are normally provided to parents from any medical practitioner or mental health practitioner whom X may attend from time to time;
7.All changeovers will occur at Suburb B Woolworths in the carpark or as otherwise agreed in writing between the mother and the Paternal Aunt.
8.Pursuant to s68B of the Family Law Act 1975 the Paternal Aunt is restrained by injunction from:
(a)causing or allowing the First Respondent Father to have any contact whatsoever with the children otherwise than in accordance with these Orders.
(b)sharing any information whatsoever with the father in relation to the children other than with the prior consent in writing of the mother.
9.Without admissions, the Paternal Aunt must ensure that she has arranged appropriate, individual bedding for the children during the time they spend with her and shall provide the mother with the details of same (including photographs if requested) upon reasonable request.
10.[Omitted].
11.[Omitted].
12.[Omitted].
13.That the father be restrained by injunction pursuant to s68B of the Family Law Act (1975) from:
(a)Coming within 50 metres of the mother;
(b)[Omitted];
(c)Removing or causing the children to be removed from any person or institution with whom the mother has entrusted the care of the children.
14.That each party be restrained by injunction from denigrating the other party, their family or friends in the hearing or presence of the children and must remove the children from the hearing or presence of any third party denigrating the other party, their family or friends.
15.The mother and Paternal Aunt must keep the other advised of their current address, mobile telephone number and email address, and advise any change to those details within 7 days of such change occurring.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jonaitis & Arendsen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short oral reasons for approval of a settlement in a parenting matter listed before me today for a five-day final hearing.
The parenting proceedings concern two children, X (born in 2010) aged 14 and Y (born in 2014) aged 10 (“the children”).
I give this short judgment both to explain why an undefended hearing has occurred with regard to the father, who has participated including with solicitors and counsel up to and including today, until he withdrew; and also to indicate that to the extent to which the New South Wales Department of Communities and Justice (“DCJ”) may take a different view, no aspect of this Court’s agreement to these consent orders should be taken to be a positive finding.
The subject children are the children of the applicant mother, Ms Jonaitis (born 1989) aged 35 (“the mother”), and the first respondent father, Mr Arendsen (born 1979) aged 44 (“the father”).
The mother is married to Mr C, and they reside together in a three-bedroom house. Mr C has three children from a previous relationship; they spend each alternate weekend with the mother and Mr C. They also have one child together, namely D (born 2023).
The father has not re-partnered, and apparently is still living between the paternal grandmother’s home and the home he formerly shared with the mother, owned by the paternal grandfather.
I note that the father disclosed during the Child Impact Report interviews that he is of Aboriginal heritage, however, neither he nor the children identify as Aboriginal. This is a factor to be considered. No one raises this as an issue in the circumstances of this case. It is not a factor which bears upon the approval.
The second respondent is the paternal aunt, Ms Arendsen (born 1985) aged 38 (“paternal aunt”). She is an educator in Region E and resides with her husband, Mr F, with their two children, G and H, and there is also an adult child, Mr J, who lives separately.
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the children’s interests.
The children currently live with the mother and spend time with the paternal aunt during school holidays and each alternate weekend from Friday to Sunday, during which time the father has also, up until recently, been spending time with the children under the supervision of the paternal aunt.
It is relevant to note, given the orders, that X has a diagnosis of Autism Spectrum Disorder and ADHD, and he has quite substantial medical needs.
Late last week at the mention on 16 August 2024, at which all parties and the ICL were legally represented, the mother and paternal aunt and ICL indicated that they had formed a view that the children should: live with the mother; and, spend time with the paternal aunt on alternate weekends and up to seven nights in school holidays; and, that the mother should have sole decision-making authority for Y and sole decision-making authority for X, except with regards to medical decisions, which should be shared with the paternal aunt. They also agreed to orders restraining the paternal aunt from giving the father access to information.
The mother, paternal aunt and ICL were also proposing limited supervised time with the father and the children, and a s 68B injunction restricting the father from coming within 50 metres of the mother, removing the children or consuming alcohol whilst with the children.
At the final hearing today, at which all parties and the ICL were represented by counsel, the parties asked for time. After spending the day in negotiations, the father’s counsel advised that the father was withdrawing his application and not seeking any orders. I note that this is in circumstances where the father’s application was that the children live with the paternal aunt and for the paternal aunt to have sole decision-making authority, which had been the paternal aunt’s position for an extended time during the proceedings, but which orders the paternal aunt no longer seeks. I note, that the paternal aunt and father had previously been seeking orders that he spend time with the children, supervised by the paternal aunt.
All of this occurs in circumstances where the father fairly acknowledged to the Court Child Expert his issues with alcohol abuse and poor mental health and accepted he could not care for the children and was not in a position to exercise parental responsibility. His hope was to progress to unsupervised time through the paternal aunt.
In reality, the only orders the father could conduct a trial over, was time orders. And although his desire is for unsupervised time, noting what was said in the Court Child Expert’s report, including the fact that when he attended that interview he smelled of alcohol and/or urine, and given that there has been no hair follicle testing, the reality is it would have been an extraordinarily difficult case for the father to have sought unsupervised time based on the evidence that is presently before the Court.
Given the father sought to withdraw and not to participate, and we are at a final hearing, and given the evidence before me and the circumstances, I indicated that I considered it appropriate to proceed by way of undefended hearing in relation to the father, and his counsel did not make any contrary submissions. The evidence was read and tendered. No witness was required for cross-examination. I note that I had previously read the materials in preparation for the hearing.
On that basis, the mother, paternal aunt and the ICL proposed the previously agreed orders, but not pressing proposed Orders 10 and 11 for supervised time of the children with the father and consequently they did not press restraints on the father consuming alcohol when the children are with him. They did not press telephone time or communication with the father at proposed Order 12.
Through his counsel the father declined the opportunity to participate, did not make submissions and, in particular, did not take the opportunity to make submissions against the s 68B injunction orders proposed against him. I note that the evidence comfortably establishes a proper basis for the injunctions that are sought by the mother, paternal aunt and ICL in respect to the father. I don’t consider them onerous, and I do, unfortunately, consider them to be necessary.
I note that until today, when I read the recent DCJ report, which again appeared to raise issues in the mother’s household going to neglect, I had no issues with the joint proposal, but am now concerned, but in reality have no other options, where the only viable parties have reached agreement and the ICL agrees, too.
I do take some comfort from the agreement of the ICL that the mother’s parenting capacity has improved with the involvement of K Family Service.
Subject to the recent material I saw about DCJ re-opening matters, I was reasonably confident in those orders.
I note that the paternal aunt has taken a very protective approach previously, which is why she is involved in the proceedings, to her credit. The fact that she has an ongoing involvement in the children’s life and, to use the expression, “has eyes on the children” also gives me comfort.
It appears the children’s school attendance is much better, so there is another set of eyes on them.
The fact that DCJ remain involved also gives me some comfort.
The ICL makes an application for costs, as she is required to.
Both the mother and the father are legally aided. The paternal aunt is not legally aided.
The paternal aunt is a volunteer to these proceedings, who has provided a major protective factor for the children, at her own cost. She has not been provided with any child support.
While the general rule, quite appropriately, is that parties should pay for the cost of their children’s lawyers, it seems to me that, taking into account all the relevant factors, it would not be in the public interest to require an intervener such as the aunt, who has provided the children with protection, and who will continue to assist to provide protections the Court considers it essential to these children’s best interests at her own costs, to be required to make any contributions towards the ICL’s costs and I exercise my discretion not to make such an order.
Those are my short reasons. Those will be the orders.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 5 September 2024
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